UK: Court of Appeal rejects technical early conciliation arguments

The Court of Appeal has ruled that an employer could not have claims from multiple claimants struck out on the basis of a technical breach of tribunal rules concerning Acas Early Conciliation certificate numbers.

Early conciliation had been completed in respect of all of the claims, but the EC certificate number given on the claim forms was that of the certificate of a lead claimant which did not list the all the claimants.  The Court of Appeal rejected the employer's argument that the tribunal should have rejected the claims, making clear its disapproval of the employer's "highly technical applications lacking any substantive merit".  It held that, in any event, the relevant rule requiring the claim form to provide "an early conciliation number" was satisfied where the certificate number given included the name of one prospective claimant.  More fundamentally, the Court commented that the purpose of the regime was to ensure claimants went to Acas before presenting a claim, not to provide that if the certificate number was incorrectly entered or omitted the claim should be doomed from the start.  If the tribunal does reject a claim on receipt, the claimant can seek rectification or reconsideration;  if it is not rejected, the respondent cannot argue that it should have been rejected and its only recourse is to apply to have the claim dismissed or struck out.  In either case, the tribunal has a broad power to waive the noncompliance.

Where a claimant has made the necessary reference to ACAS and obtained an EC certificate before commencing proceedings, employers are unlikely to succeed in getting a claim thrown out on the basis of this type of technical breach.

(Sainsbury’s Supermarkets Limited v Clark)